Introduction

The Case Law Database (“CLD”) is a gateway to the jurisprudence of the ICTR, ICTY, and IRMCT Appeals Chambers.

It provides direct access to extracts of key judgements and decisions rendered by the ICTR, ICTY, and IRMCT Appeals Chambers since their inception, as well as to full-text versions of the corresponding appeal judgements and decisions.

Users can conduct quick searches by notions, cases names, titles of filings, date (in year-month-day format), statutes, rules, and other instruments through the “Basic Search” page. In addition, refined searches in all fields of the database can be conducted through the “Advanced Search” feature.

Please note that the CLD does not include confidential decisions and restatements of established case law and does not necessarily contain all notable rulings by the Appeals Chambers of the ICTR, the ICTY, and the IRMCT. For exact numbering of footnotes, refer to full documents.

The CLD is a living tool and its content is being regularly updated. Please help us improve the service by using our feedback form.

Help

Browse the list of legal notion titles using the A-Z index. Click on the notion to show the page containing relevant case law extracts.

Submit Feedback

Please help us improve the service.

You can send ideas to marshague at un dot org

Thank you very much for your help.

Jurisdictional challenge

6. This narrow interpretation of the concept of jurisdiction, which has been advocated by the Prosecutor and one amicus curiae, falls foul of a modern vision of the administration of justice. Such a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial. All the grounds of contestation relied upon by Appellant result, in final analysis, in an assessment of the legal capability of the International Tribunal to try his case. What is this, if not in the end a question of jurisdiction? And what body is legally authorized to pass on that issue, if not the Appeals Chamber of the International Tribunal? Indeed - this is by no means conclusive, but interesting nevertheless: were not those questions to be dealt with in limine litis, they could obviously be raised on an appeal on the merits. Would the higher interest of justice be served by a decision in favour of the accused, after the latter had undergone what would then have to be branded as an unwarranted trial. After all, in a court of law, common sense ought to be honoured not only when facts are weighed, but equally when laws are surveyed and the proper rule is selected. In the present case, the jurisdiction of this Chamber to hear and dispose of Appellant's interlocutory appeal is indisputable.

The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

[2] Karadžić does not contend that the Appeals related to personal, territorial or temporal jurisdiction.

[3] Rwamakuba Decision on Jurisdiction [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Validity of Appeal of André Rwamakuba Against Decision Regarding Application of Joint Criminal Enterprise to the Crime of Genocide Pursuant to Rule 72(E) of the Rules of Procedure and Evidence, 23 July 2004] (commenting on the corresponding ICTR rule, which is equivalent in all relevant respects).

[6] See, e.g., Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR72, Decision Pursuant to Rule 72(E) of the Rules of Procedure and Evidence on Validity of Appeal of Joseph Nzirorera Regarding Chapter VII of the Charter of the United Nations, 10 June 2004 (rejecting an interlocutory appeal as failing to raise a jurisdictional challenge because Rule 72(D) is narrow in scope in permitting appeals as of right).

21. The instant appeals are filed pursuant to Sub-rule 108 (B). However, the starting point in considering whether the Appeals may be maintained is Article 24 of the Statute of the ICTR. That statutory provision gives the Appeals Chamber authority to hear appeals from “persons convicted by the Trial Chamber or from the Prosecutor” (emphasis added). Clearly, the Appellant does not fall into either category.

22. However, even in instances when a person is not appealing from a conviction, the Appeals Chamber has jurisdiction to hear certain matters which are interlocutory in nature. Rule 72 explicitly allows for an appeal from a judgement dismissing an objection based on lack of jurisdiction. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in The Prosecutor v. Dusko Tadić (“Tadić Appeals Decision”) has upheld the legality of an appeal in these circumstances. It interpreted Rule 72 of the Rules of Procedure and Evidence of the ICTY (“ICTY Rules”) which was then identical to ICTR Rule 72 and allowed an interlocutory appeal from a dismissal based on lack of jurisdiction. The Appeals Chamber stated:

“Such a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial…Would the higher interest of justice be served by a decision in favour of the accused, after the latter had undergone what would then have to be branded as an unwarranted trial. After all, in a court of law, common sense ought to be honoured not only when facts are weighed, but equally when laws are surveyed and the proper rule is selected. In the present case, the jurisdiction of this Chamber to hear and dispose of Appellant’s interlocutory appeal is indisputable.”[2]

11. To the extent that the Appellant’s argument concerns not the sufficiency of the indictment but the sufficiency of the supporting evidence, the Appeals Chamber agrees with the Trial Chamber that this is an issue to be resolved at trial. The question whether an indictment is supported by sufficient supporting material to make out a prima facie case is not a jurisdictional one within the meaning of Rule 72(B)(i), and the Appellant has no right to an interlocutory appeal of the confirming judge’s decision on this question.[1] [….] Here […] the indictment’s allegations are legally sufficient, and the further question whether those allegations are supported by the evidence is a factual one that is inappropriate for interlocutory appeal.

9. […] The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) only where they challenge an indictment on the ground that it does not relate to: (i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute (“personal jurisdiction”); (ii) the territories indicated in Articles 1, 8 and 9 of the Statute (“territorial jurisdiction”); (iii) the period indicated in Articles 1, 8 and 9 of the Statute (“temporal jurisdiction”); or (iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute (“subject-matter jurisdiction”).[1]

15. The Appeals Chamber finds that the Appellant fails to raise a proper jurisdictional challenge pursuant to Rule 72(D)(iv) of the Rules under his first ground of appeal or to demonstrate that the Trial Chamber erred in dismissing his argument as to “occupied territory” being a necessary requirement for the crimes of deportation and forcible transfer as crimes against humanity. Here, the Appellant is not contesting that the International Tribunal has jurisdiction over these crimes under Article 5 of the Statute, which are charged in the Joint Indictment according to their definitions and elements under customary international law as set out in the jurisprudence of the International Tribunal.[1] Rather, he argues that the interpretation of the definition for the actus reus of these crimes should be narrow and limited to displacement from occupied territory. As such, the Appellant may bring these arguments before the Trial Chamber to be considered on the merits at trial; however, they do not demonstrate the Tribunal’s lack of subject-matter jurisdiction.[2]

18. The Appeals Chamber considers that the Appellant […] fails to raise a proper jurisdictional challenge under Rule 72(D)(iv) of the Rules. The Appellant does not dispute that the International Tribunal has jurisdiction over crimes charged under Articles 3 and 5 of the Statute as violations of Common Article 3 of the Geneva Conventions. Furthermore, he does not dispute that “committed against persons taking no active part in the hostilities” is a proper element of such crimes under customary international law. Rather, he contests the definition of that element and argues that the jurisprudence of the International Tribunal demonstrates that it should be interpreted narrowly to require that such persons be shown to be in the hands of a party to the conflict akin to the “protected person” element for crimes alleged to be grave breaches of the Geneva Conventions under Article 2 of the Statute. Such arguments are properly raised on the merits at trial[3] and do not demonstrate that the International Tribunal lacks subject-matter jurisdiction over the crimes and the elements of those crimes under Counts 8 and 9 of the Joint Indictment. […]

21. The Appeals Chamber finds that the Appellant […] fails to raise a proper jurisdictional objection within the meaning of Rule 72(D)(iv) of the Rules and to demonstrate that the Trial Chamber erred in rejecting it. Clearly, the Joint Indictment provides that a state of armed conflict existed at all times with respect to the violations of international humanitarian law alleged therein. Whether an armed conflict actually existed post-Operation Storm is a factual determination to be made at trial. It was well within the discretion of the Trial Chamber to consider that determining this issue pre-trial is premature and can only be decided upon hearing and weighing all of the evidence.[4] To the extent that the Appellant claims that the provisions of the Joint Indictment on this issue are inconsistent or do “not plead any facts supporting the existence of an armed conflict after Operation Storm”,[5] these arguments may constitute allegations of defects in the form of the indictment, which may be challenged under Rule 72(A)(ii) of the Rules.[6] […]

24. The Appeals Chamber considers that the Appellant fails to […] raise[…] a proper jurisdictional objection pursuant to Rule 72(D)(i) of the Rules. Here, the Appellant does not contest the International Tribunal’s jurisdiction over JCE as a mode of liability under Article 7(1) of the Statute, which, as the Trial Chamber noted, is clearly established in the jurisprudence of the International Tribunal.[7] In the Joint Indictment, the Prosecution alleges JCE and its elements, as they are set out in the Tribunal’s jurisprudence, and the Appellant merely challenges the definition and interpretation of a particular element as established in cases subsequent to the Tadić Appeals Judgement.[8] The Appeals Chamber agrees with the Trial Chamber that such a challenge is to be considered on the merits at trial.[9] To the extent that the Appellant submits that the Prosecution has failed to plead an element of this mode of liability properly, such an argument goes to pleading practice and the form of the indictment and is not a challenge to jurisdiction.[10] […]

In his Appeal, the Appellant says that he accepts that the crimes charged and the modes of liability alleged in the Indictment do fall within the jurisdiction of the Tribunal but questions whether they ‘nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction’. The Appellant’s complaint therefore is not whether the Tribunal has jurisdiction over the crimes and modes of liability alleged [. . .].

See also Prosecutor v. Delalić et al., Case No. IT-96-21-AR72.5, Decision on Application for Leave to Appeal by Hazim Delić (Defects in the Form of the Indictment), 6 December 1996 at para. 27 (“Delalić et al. Decision”) (holding that “Articles 2, 3, 4 and 5 of the Statute are shorthand for the corresponding norms of international humanitarian law, and if there is any dispute as to those norms, that is a matter for trial not for pre-trial objections to the form of the Indictment.”).

[3] Cf. Delalić et al. Decision at para. 27 (holding that “Articles 2, 3, 4 and 5 of the Statute are shorthand for the corresponding norms of international humanitarian law, and if there is any dispute as to those norms, that is a matter for trial not for pre-trial objections to the form of the Indictment.”). See e.g., Prosecutor v. Anto Furundžija, Case No. IT-05-17/1-T, Judgement, 10 December 1998 at paras. 172-186 (“Furundžija Trial Judgement”) (wherein the Trial Chamber further defines the elements of rape as a crime against humanity under Article 5(g) of the Statute as found in customary international law and broadens its definition);Prosecutor v. Dragoljub Kunarac et al.,Case Nos. IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001 at paras. 436-460 (expanding upon the definition of the element “by coercion or force or threat of force against the victim or a third person” for rape as a crime against humanity under Article 5(g) of the Statute as established in the Furundžija Trial Judgement).

[4] See Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR72.1, Decision on Interlocutory Appeal on Jurisdiction, 22 July 2005, paras. 11-13. Cf. Prosecutor v. Rasim Delić, Case No. IT-04-83-AR72, Decision on Interlocutory Appeal Challenging the Jurisdiction of the Tribunal, 8 December 2005, para. 11(holding that “[t]o the extent that the Appellant’s argument concerns not the sufficiency of the indictment, but the sufficiency of the supporting evidence, the Appeals Chamber agrees with the Trial Chamber that this is an issue to be resolved at trial.”); Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 14 (holding that whether the Prosecution can establish a connection between alleged Article 5 crimes in Vojvodina and an armed conflict in Croatia and/or Bosnia and Herzegovina is a question of fact to be determined at trial).

[9] See Impugned Decision, para. 22 & fn. 25 citing to Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Decision on Ojdanić’s Motion Challenging Jurisdiction: Indirect Co-Perpetration, 22 March 2006, para. 23 (“[l]ike challenges concerning the contours of a substantive crime, challenges concerning the contours of a form of responsibility are matters to be addressed at trial.”). The Trial Chamber also cited to the Blaškić Appeal Judgement at paras. 34-42 wherein the Appeals Chamber considered whether the Trial Chamber’s articulations of the definition for the mental element of “ordering” pursuant to Article 7(1) of the Statute were in error.

In his Appeal, the Appellant says that he accepts that the crimes charged and the modes of liability alleged in the Indictment do fall within the jurisdiction of the Tribunal but questions whether they ‘nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction’. The Appellant’s complaint therefore is not whether the Tribunal has jurisdiction over the crimes and modes of liability alleged, but whether the Prosecution has pleaded those crimes and modes of liability properly. The Trial Chamber did not err in determining that this argument was addressed in its Decision on Defence Motions on the Form of the Indictment. Accordingly, the Trial Chamber was not required to address this argument in the Impugned Decision. (Footnotes omitted).

7. When reviewing a Trial Chamber’s decision on jurisdiction under Rule 72(B)(i) of the Rules, the Appeals Chamber will only reverse the decision “if the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant considerations or irrelevant considerations in an unreasonable manner.”[1] In reaching its decision, it is incumbent upon a Trial Chamber “to provide a reasoned opinion that, among other things, indicates its view on all those relevant factors that a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2]

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

12. The second complaint of the Appellants relates to the jurisdiction of the Tribunal over Counts 5, 6 and 7 in non-international armed conflicts. This is also a complaint that should have been made by the Appellants pre-trial pursuant to Rule 72. However, because the resolution of this issue will assist both the Appellants and the Prosecution in the further conduct of the trial proceedings, and the Trial Chamber in the rendering of its judgment, the Appeals Chamber resolves to determine this issue.

13. The Appellants’ challenge to the Tribunal’s jurisdiction over Counts 5, 6 and 7 of the Indictment stems from the Appellants’ interpretation of the Tadić Jurisdiction Decision regarding the scope of jurisdiction under Article 3 of the Statute. In the Tadić Jurisdiction Decision, the Appeals Chamber held that Article 3 confers jurisdiction over any serious offence against international humanitarian law committed in non-international or international armed conflict not covered by Articles 2, 4, or 5.[1] The Appeals Chamber prescribed a four-prong test to ensure that offences charged under Article 3 lie within the International Tribunal’s jurisdiction.[2] On appeal the Appellants argue that the jurisdictional grant embodied in the enumerated provisions of Article 3 only refers to the conventional law from which that text is derived. The Appellants claim that as that conventional law underpinning Articles 3(b), (d) and (e), charged in Counts 5, 6 and 7 of the Indictment respectively, relates to international armed conflicts and situations in occupied territory, the Tribunal does not have jurisdiction over these offences in non-international armed conflicts.[3]

14. The Appellants’ position is an unnecessarily narrow reading of the Appeals Chamber’s jurisprudence with respect to the scope of the enumerated provisions in Article 3. In the Tadić Jurisdiction Decision, the Appeals Chamber stated, with respect to the list of enumerated violations, that “this list may be construed to include other infringements of international humanitarian law”,[4] demonstrating that the enumerated crimes of the list itself should be considered to encompass rules in addition to the conventional law from which their text originates.[5] Accordingly, properly understood, Article 3 confers jurisdiction over violations of rules that are expressed by the provisions of the Article, but which are not limited to the conditions of the rule’s origin in conventional instruments applicable to international armed conflicts only.[6]

[1] Tadić Jurisdiction Decision [Prosecutor v. Dusko Tadić., Case No. IT-94-1-AR72,Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras. 89-91 (and noting the Secretary-General’s Report, which stated that “Article 3 is taken to cover all violations of international humanitarian law other than [those covered by other provisions of the Statute]”).

[6] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex containing the Charter of the International Military Tribunal, art. 6, Aug. 8, 1945, 59 Stat. 154, 82 U.N.T.S. 279 […].